Bedroom Police

It sounds like an urban myth, but it’s true: In 13
states, police can arrest consenting adults for performing particular sexual
acts. Even in private. Even in their own bedrooms.

The conviction of two Texas men for violating that
state’s anti-sodomy law will be heard today by the U.S. Supreme Court.
Supporters of the statute say it is necessary to preserve family values; the
legal challenge, they warn, is just another attempt by homosexual activists to
legalize gay marriage.

But this case has nothing to do with family values or,
least of all, gay marriage. And even though Texas is one of only four states
that bans sodomy for same-sex couples but not for opposite-sex couples, the
equal-protection issue is only one argument against it.

The other issue is due process, the fundamental right of
a citizen to liberty and justice. Simply put: Is it government’s job to tell
consenting adults how to have sex? Is it the job of police, prosecutors and
judges to arrest you, fine you, throw you in jail and hold you up to public
ridicule if you don’t have the kind of sex that carries the government’s
seal of approval?

Alabama, Florida, Idaho, Louisiana, Michigan,
Mississippi, North Carolina, South Carolina, Utah and Virginia all ban sodomy
between homosexuals and heterosexuals alike; Kansas, Missouri, Oklahoma and
Texas forbid sodomy only between gays. Although the laws are rarely enforced,
they offer a ripe opportunity for selective prosecution. And the consequences
can, at least in theory, be dire: In Idaho, a sodomy conviction can get you
five years to life in prison.

Giving the government that kind of power over the most
private, intimate aspects of our lives ought to alarm everyone—straight, gay
or celibate.

Yet that was exactly the sort of power the Supreme Court
upheld in one of its worst decisions of the last two decades. In the 1986 case
called Bowers v. Hardwick, the court voted 5-4 to uphold Georgia’s ban on
homosexual sodomy (a law that state has since, wisely, rescinded). Only two
members of the majority in that case, Chief Justice William Rehnquist and
Justice Sandra Day O’Connor, remain on the court.

In its brief to the court in the current case, the state
of Texas argues that “the nation has a long-standing tradition, only
recently waning, of criminalizing (sodomy) ... as a serious criminal
offense.” Let’s hope the justices put that intrusive, offensive tradition
to rest for good.